Yu Hon Tong, Thomas v. Eagle Star Consultants Ltd
Read the full judgment text of HCSA 37/1987 on BabelCite. This High Court CFI judgment was delivered on 7 November 1987.
1. This is an appeal from a decision of a Small Claims Tribunal (S.C.T.).
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HCSA000037/1987 Small Claims Tribunal - jurisdiction over actions relating to contracts between Principal and Agent and within statutory monetary limit - Matters connected with disputes between employee and employer come under the exclusive purview of Labour Tribunal - Relationship is determined by the law and not by the label which the parties choose to put on the contract - Question of fact as to whether a contract is one for service or of service. SMALL CLAIMS TRIBUNAL ORDINANCE IN THE COURT OF APPEAL
BETWEEN
_______________ Coram: H. Wong, Deputy Judge. Dates of Hearing: 16 and 19 October 1987 Date of Judgment: 7 November 1987 ______________ J U D G M E N T ______________ 1. This is an appeal from a decision of a Small Claims Tribunal (S.C.T.). 2. Facts are fairly simple. By a contract dated 1/6/86 and a supplementary Agency Agreement of 9/6/86 the Appellant (Defendant in S.C.T.) was appointed as Consultant/Representative of the Respondent (Claimant in S.C.T.) under the Terms and Conditions contained in those documents. The relationship between the parties was of short duration and came to an end in November 1986. On 14/1/87 the Respondent brought an action in S.C.T. against the Appellant on a debt which resulted from the difference between its advances to and commission earned by the Appellant. Hearing was set down for 7/5/87 and, as the Appellant was absent on that day, judgment was given against him in the sum of $7,563.82. He later claimed, without supporting proof, to be ill on 7/5/87 and succeeded in having that judgment set aside. A new trial was thus held on 20/7/87 and on completion the Adjudicator ordered that his previous decision in Respondent's favour should stand. It is against that order that the Appellant now appeals. 3. The Appellant appeared in person and, with obvious knowledge of the law, advanced various grounds, factual and legal, in support of his case. Those grounds, wide and varied as they are, can conveniently be lumped into 3 groups: (1) the Adjudicator's bias, (2) want of jurisdiction by S.C.T. and (3) illegal money lcnding by the Respondent. 4. It is pertinent to mention at the outset that both sides were cognisant of the powers of the High Court under Section 29(2) of S.C.T. Ordinance, Cap. 338 which says:
(a) draw any inference of fact; and (b) make such order as to costs and expenses as it thinks fit, but may not (i) reverse or vary any determination made by the tribunal on questions of facts; or (ii)receive further avidence. 5. Relying on S. 29(2) b(ii) above, I hold that since the Appellant's point that advances made to him by the Respondent were in breach of the Money Lender Ordinance, Cap. 163 (Ground 3) was not raised at S.C.T., it is not allowed to be brought out in this appeal. Nevertheless, for the sake of argument I say that that submission falls in error because Respondent's case comes within the exempted provision of the relevant ordinance which says:
6. First Schedule, Part 2 - Exempted loans.
7. As regards the two remaining grounds, they are dealt with as follows: 8. Ground 1 - The Adjudicator's bias 9. The Appellant complained that the Adjudicator (a) refused to grant him permission to issue sub-poena on witnesses, (b) failed to supply him with a free copy of the Respondent's written statement to S.C.T. and (c) omitted to take into consideration his legal authorities. On these points I say that under (a) leave of the Adjudicator or indeed any presiding judge to a litigant to issue witness sub-poena is not normally required; under (b) payment should generally be made in accordance with the prevailing scale of fees to obtain copies of documents filed with a court or tribunal, and under (c) it is the Adjudicator's prerogative as to what legal points to consider before arriving at his decision. For these reasons I find that the Appellant's complaints against the Adjudicator are unfounded and reject them. 10. Ground 2 - Want of jurisdiction 11. It is known to all concerned that the Labour Tribunal has exclusive jurisdiction over labour disputes, i.e., those connected with employment or relationship between eaployce and employer. The governing provision is in Section 7 of Labour Tribunal Ordinance, Cap. 25 which reads:
12. The Adjudicator's awareness of the jurisdiction of the two types of tribunal can be found in his Reasons for Decision. He said:
13. The Appellant contended that he was the Respondent's employee, so that the forum for the determination of the Respondent's claim in its capacity as his employer ought to have been the Labour Tribunal and the hearing at S.C.T. was therefore ultra vires. He cited the following grounds to substantiate his alleged employee/employer relationship with the Respondent: 1) REMUNERATION The Appellant claimed that he was in receipt of monthly salary of $3,500.00, which was subject to deduction for unsatisfactory sale performance or incompetence, such as the forfeiture of $1,000 from his pay of October 1986. As this topic and, indeed anything concerning monthly salary, was not mentioned in the court below, it is new evidence that cannot, as laid down in the aforesaid S. 29(2) of S.C.T., be introduced in an appeal. It is consequently disregarded. 14. On the question of financial arrangement between the parties the terms and conditions of the contract and the agency agreement contain these clauses: (a) Agreement - Section B: Advanced Commission - Financing
15. The Appellant said that the so-called "advance financing" made by the Respondent to him came within the definition of wages of the Employment Ordinance, Cap. 57 Section 2 which says:
16. This point was not dealt with by the Adjudicator, apparently because he rejected the Appellant's contention of being the Respondent's employee. For my part, I fail to see how advances or loan made by the Respondent to the Appellant, in the absence of other evidence, can be said to lie within the ambit of wages as legally defined. 17. Following the termination of the agreement the Respondent prepared a statement of the Appellant's account (Exhibit C3 of S.C.T.) which is reproduced below:
Balance due to Eagle Star Consultants Ltd as at 28/2/87 is HK$7,563.82. 18. Mr. Pennicott, for Respondent, referred to the contents of the agency agreement, Section A, clause 3b that "upon termination, of this Agreement no further commission will be payable save as provided in sub-clauses (c), (d) and (e). (These sub-clauses are in respect of the death, retirement or ill-health of a representative) and explained that it was the Respondent's generous gesture to continue to credit the Appellant's account with commission for a few months subsequent to the severance of relationship between them in November 1986. On this aspect the Adjudicator said in his decision that: "It has not been disputed that the amount of money stated in Exhibit C3 was correct. .... From Exh. C3 one can see from June 86 to October 86 the claimant has made financial advancements to the defendant to the amount of $14,500.00. Commission earned by the defendant from August 86 to February 87 at various sums come to $6,936.18 and the balance in February 87 was $7,563.82 due to the claimant and this is the sum being claimed by the claimant .............. The crux of the matter is that the claimant has advanced sums of money to the defendant to enable him to set up his cwn business so that he could solicit business for the claimant." 2) CONTROL - The Appellant maintained that the Respondent exercised control over him in these areas:
19. The Appellant rounded off his submission by saying that the way and manner in which he performed his duties were restricted by the Respondent and, furthermore, since he had not taken out a Business Registration Certificate to denote that he carried on business of his own, his contract with the Respondent was one of service. 20. On this issue the Respondent relied on the Adjudicator's findings which are as follows:
21. Points of law on (a) the criteria in support of a contract for service and one of service and (b) the legal authorities relating to the determination by the courts of a particular kind of contract from the conduct and/or intention of the parties can be found from: 22. 1) Halsbury's Laws of England, 3rd ed., Vol. 25 paragraph 87S which says:
23. 3) "Wong Man Luen v. Hong Kong Wah Tung Stevedore Co." (1971) HKLR 390, where it was held, inter alia, that "control over the manner of performance of the work, although a matter for consideration, was not decisive, and the fundamental test in determining whether a person was performing services under a contract "of service" or "for services" was whether that person was performing the services as a person in business on his own account and thus under a contract for services. The status of being in business on one's own account implies the possibility not only of profit but also of loss." 24. The Respondent laid great emphasis on the privy Council's case of "Australian Futual Provident Society v. Allan and another" (1978) 52 ALJR p. 409 in which it was held that:
25. Mr. Pennicott also stressed that the Adjudicator had decided on points of facts which, under s. 29(2) of S.C.T. Ordinance, could not be reversed or varied by the High Court. The concluding part of that decision reads:
26. In my view, the appeal does not raise any general question of law. No doubt a number of decided cases was referred to in the course of argusent which I consider to be only as examples of facts that have been treated by the courts as indication for or against a contract of service. In my judgment the Adjudicator reached his conclusion after having resolved some ambiguities, such as those on working hours and annual leave, and after having asked himself whether on the whole of evidence a contract for service or of service existed. His judgment is clearly on questions of facts with which under the law, I cannot interfere. I would add that, from the evidence, there is no justification for me to draw an inference of fact contrary to the Adjudicator's views. 27. It has been said that if the relationship of the parties was ambiguous and capable of being either service or agency, then the ambiguity could be removed by the agreement which they made with each other. In the present case, support on this point can be found in clause 22 of the Agency Agreement which says.
28. In the light of the foregoing I uphold the Adjudicator's decision and dismiss the appeal.
Representation: Yu Hon -tong, Thomas, Appellant in person. Mr. Ian Pennycott, instructed by Messrs. Simmons & Simmons for Respondent. |